In re Omega Trust

281 A.3d 1281 (2022)

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In re Omega Trust

New Hampshire Supreme Court
281 A.3d 1281 (2022)

  • Written by Angela Patrick, JD

Facts

Mark Douglas created a revocable inter vivos trust titled the Omega Trust as part of his estate plan. The trust stated that Douglas could amend the trust “by filing notice of such revocation, modification, change, or withdrawal with the Trustee” and that the amendment “shall be effective when executed by [Douglas].” Twice, Douglas followed the procedures listed in the trust to formally amend its terms. In poor health, Douglas decided to amend the trust a third time to change the successor trustees, add new beneficiaries, and make other changes. Douglas emailed his attorney regarding these intended changes. The attorney asked some questions and then emailed Douglas a summary of the proposed changes, noting that the firm was ready to prepare the formal amendment documents. Douglas responded, “Very nice job, there are just a few suggested changes as noted below.” The attorney replied that the firm would finalize the formal amendment document with those requested changes. Two days later, Douglas died without having signed a formal third amendment. David Apostoloff (plaintiff), a trust beneficiary, filed a petition in state court to have the email exchange declared a valid amendment to the Omega Trust. The Omega Trust’s trustee (defendant) moved to dismiss the petition, arguing the trust’s stated amendment method was exclusive and the emails did not comply with that method. The trial court granted the motion and dismissed the petition. Apostoloff appealed to the New Hampshire Supreme Court.

Rule of Law

Issue

Holding and Reasoning (Hantz Marconi, J.)

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Casebooks

Wills, Trusts, and Estates

Key Terms

  • TrusteeA fiduciary designated under the terms of a trust as responsible for management of the trust and its assets according to the terms of the trust.
  • Revocable Inter Vivos TrustA document under which assets are held in trust for specified beneficiaries during the life of the settlor and the settlor reserves the right to revoke the trust during his or her lifetime. The trust also directs how the income and assets of the trust are to be distributed after the death of the settlor. A revocable inter vivos trust is sometimes referred to as a revocable living trust.
  • SettlorThe party who creates and funds the trust, whether for the benefit of the settlor or another party. The term settlor may be used interchangeably with the term grantor in the trusts context.
  • Successor TrusteeA backup fiduciary who is designated to take over the duties of trustee if the current trustee becomes unable to do so.

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